Message from the Editor:
Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.
We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.
Lorenzo
Lorenzo Pugliano
CEO
Lpugliano@nsshire.com
| EMPLOYMENT SCREENING |
California’s Salary History Ban Answers to Frequently Asked
Questions
As of
2018, California employer are prohibited from asking
job applicants about their salary histories, including compensation
and benefits, both personally and through an agent. Applicants
may still “voluntarily and without prompting” disclose their own
salary history information. Employers are permitted to an
applicant’s previous employer to verify prior history after a job offer
has been made. Upon reasonable request, employers now are
required to provide a pay scale for a position being a applied for.
GDPR: The Three Big Risks to Your Business
With the General Data Protection Regulation looming just around
the corner in May, information security experts Citrix has examined
the major risks that could impact British firms as they grapple with
compliance. Three major risks were determined, including data
sprawl, information overload and data ownership. The average firm
uses no fewer than 24 systems to store and manage personal
data, with 21% using more than 40 systems. This could lead to the
next major problem: information overload, which simply means
having too much data to deal with. Finally, data ownership is anarea of real uncertainty for firms, many of which are unsure if they
or the customer owns the personal information.
| LEGAL ISSUES |
Ohio Appellate Court Dismisses FCRA Class Claim for Lack of
Article III Standing, Citing Spokeo
In early December, a Court of Appeals for the state of Ohio
affirmed dismissal of a putative Fair Credit Reporting Act (FCRA)
class claim against Ohio State University on the basis that the
plaintiffs lacked standing to assert their no-injury, statutory claim in
Ohio state court. Two years after being hired in 2012 and 2014 as
a facility manager and housekeeper, the plaintiffs filed suit against
OSU under the FCRA, alleging that OSU provided a background
check disclosure and authorization to each of them that improperly
included extraneous information and a liability release. In June
2016, the United States District Court for the Southern District of
Ohio, Eastern Division, determined that the appellants failed to
allege that they sustained any injury-in-fact.
Check Those Pre-Adverse Action Letters – New California Law
Goes into Effect
California Government Code 12952 went into effect in early
January, which will regulate how employers can use criminal
background checks in the hiring process. The law is unique in that
it contains new requirements as to what a potential employer must
include in a pre-adverse action letter to job applicants – beyond
what the federal Fair Credit Reporting Act (FCRA) already
mandates.
Military Contractor Hit with FCRA Putative Class Action over
Background Checks
L3 Technologies, Inc., a military contractor, recently was hit with a
Fair Credit Reporting Act (FCRA) putative class action in California
federal court, alleging that it violated the “stand-alone” disclosure
requirement in its background reports. Joseph Estes was hired by
L3 and worked as a mechanic for the company in California, but,
during the application process, was asked to fill out a “Background
Investigation Consent” form permitting L3 to obtain a background
report on him. He claims the company violated the FCRA’s
requirement that businesses obtaining a consumer report for
employment purposes must notify the applicant of that request in a
separate document.
| DRUG SCREENING |
Opioid Testing by Employers is Becoming More Common
The opioid epidemic has resulted in more employers testing for
these painkillers in the workplace. Effective Jan. 1, the U.S.
Department of Transportation (DOT) requires employers regulated
by the department to conduct opioid testing, which applies to
commercial motor vehicle drivers, flight crew and other aviation related
workers,railroad employees,transit workers, certain pipe line employees and marine employees regulated by the U.S. Coast Guard. But employees other than those not regulated by the DOT are questioning whether it is legal to implement drug testing. According to the executive director of the Drug & Alcohol Testing Industry Association, employees can test specifically for opioids as long as they are following state drug testing laws, a medical officer reviews positive results, and drug-free workplaces clarify which substances are prohibited.
Can You Still Fire a Pot-Smoking Employee in California?
It is important for both employers and employees to understand
that the new laws permitting recreational marijuana use in
California does not impact employers’ rights to maintain and
enforce drug-free workplace policies and drug testing policies.
Under federal law, marijuana remains a Schedule 1 drug that is
prohibited under the Controlled Substances Act, and the California
Supreme Court held in 2008 that an employer lawfully may enforce
a policy of refusing to hire an applicant who tests positive for
marijuana, even if the employee was using the marijuana for
medical purposes.
Employee Use of Marijuana: The Law is Hazy for Employers
The City of Atlanta passed an ordinance in the fall that
decriminalized the possession of less than one ounce of
marijuana. Individuals found with such small amounts will not be
fined and face no jail time. Georgia enacted a law in 2017 that
expanded the qualifying medical conditions for which cannabis oil
may be used legally, which includes the possession of 20 ounces
of oil with up to a five percent THC level with doctor’s approval.
Twenty-eight states and Washington D.C. have enacted similar
laws surrounding various use of marijuana and courts have begun
to address whether an employee’s use of medical marijuana can
be a reasonable accommodation under the Americans with
Disabilities Act and similar state laws.
| EVERIFY & IMMIGRATION STATUS |
Form I-9 Worksite Enforcement Expected to Ramp Up in 2018
President Donald Trump’s administration has signaled that the
number of Form I-9 employment eligibility verification audits will
significantly escalate in 2018. The Immigration and Customs
Enforcement (ICE) plans to increase worksite investigations of
employers by four or five times. Size is not a factor when it comes
to ICE audits of workers’ employment eligibility.
How to Avoid Common Form I-9 Violations
Fines for knowingly hiring or continuing to employ unauthorized
workers can reach as much as $16,000 per violation. These four
important areas will help employers avoid common Form I-9
violations. 1. Form I-9 must be retained for three years after the
date of hire or one year after the date of termination, whichever is
later. 2. Though there is no legal requirement that Forms I-9 be
stored separately from the employment file, it is a good idea to do
so. 3. New hires must be allowed to select documents of their
choice from the lists accompanying Form I-9, however, none of
these documents can be expired. 4. If a mistake or error is found
on a Form I-9, it is important that employers never erase, use
white-out or otherwise render the initial information unreadable.
Immigration Agents Raid Dozens of 7-Eleven Stores
In what began with a four-year-old case against a franchisee in
Long Island, New York, agents targeted about 100 7-Eleven stores
nationwide to open employment audits and interview workers.
President Trump’s sharp expansion of immigration enforcement
has already brought a 40 percent increase in deportation arrests.
Illegal hiring rarely is prosecuted, partly because investigations are
time-consuming and convictions are difficult to achieve because
employers can claim they were duped by fraudulent documents or
intermediaries. The 7-Eleven stores served on Wednesday will be
required to produce documents showing they require work
authorization. Audits may lead to criminal charges or
administrative penalties.
| Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Services makes no representations for any products or services that are mentioned and accepts no responsibility for any actions or consequences taken without the guidance of a licensed attorney or professional consultant
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